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Alternative Dispute Resolution

Collaborative Divorce vs. Mediation

Sunday, March 15th, 2015

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Mediation

As discussed in greater detail in our article discussing mediation in Georgia divorce, mediation is an alternative to trial where a neutral third party, known as a mediator, facilitates settlement between the parties by focusing the parties’ attention on their relative needs and interests instead of their conflicting positions. Mediator’s do not have the authority to force the parties into settlement or make any decisions, but may only guide the parties in reaching a mutually agreeable settlement.

Collaborative Divorce

The collaborative divorce process is a relatively new approach to resolving divorce issues. Like mediation, the goal of collaborative divorce is for the parties to reach an agreement or settlement without court intervention. If parties to a divorce decide to engage in the collaborative divorce process, both parties, along with their respective attorneys, agree to work together to craft a mutually agreeable solution to all fours issues presented during divorce. Collaborative divorce is based on a team effort, where the parties and attorneys, along with other divorce related professionals, such as accountants and therapists, work together to determine what outcome would best serve the best interest of the entire family.

Although both mediation and collaborative divorce have the same ultimate goal, allowing the parties the freedom to craft the solution best suited for their situation without the intervention of the court, there are differences in these two approaches to divorce. First, mediation involves the presence of a third party mediator who directs negotiation between the parties, or their attorneys. Collaborative divorce on the other hand, there are generally only four people involved in each meeting, both parties and their attorneys. During collaborative divorce, the parties engage with each other, not through a mediator, to resolve their issues. Second, collaborative divorce involves an agreement between the parties and their attorneys, where all involved agree to seek a resolution without the intervention of the court, and before initiating the formal divorce process. If the parties are unable to reach an agreement, the attorneys involved in the collaborative process agree not to represent the parties during any subsequent divorce litigation. On the other hand, mediation does not require such an agreement. Finally, unlike collaborative divorce, parties may engage in mediation either prior to or during the formal divorce process. However, the collaborative divorce process requires the parties to come to a final agreement before initiating the formal divorce process.

Choosing A Mediator

Sunday, February 1st, 2015

 

Mediation is often a successful option for resolving a divorce case without going through a trial. It is the preferred settlement method for many divorce attorneys because it allows the parties to determine their fate, rather than a Judge. You can see details about the mediation process HERE. Though the mediator has no decision-making authority over your case, he/she can often help guide the case to resolution. In spite of this, choosing the right mediator for your case may actually help the settlement process.

 There are several things to consider in choosing a mediator. First, research the mediator’s experience in your county and with your Judge. Experienced mediators have likely seen it all when it comes to divorce mediation. As such, they will know what a particular Judge is likely to do in certain situations. For example, consider a couple fighting over a child support deviation. The mediator may know that the Judge assigned to the case does not often deviate from amount calculated on the child support worksheets. The mediator could, in turn, tell the party requesting the deviation that he/she is unlikely to get it if the case goes to court, which could result in a quick settlement on that particular issue.

 Another thing to consider is the personality of your mediator. Some mediators are stronger than others, really pushing the parties to come to a resolution. Others are more passive, just taking offers back and forth like a middleman. In addition, there are extremely creative mediators who think outside the box to help the parties come up with solutions to resolve the case. Choosing a passive mediator when you need an aggressive one, or vice versa, can actually hinder the settlement of your case at mediation.

 On that same note, you also need to consider your personality and that of your spouse. Some people do not react well to a mediator really pushing them to compromise on certain issues and may become turned off on the idea of settlement. (These people are the ones who actually usually need the push!) Other people may not be open to the idea of working with one gender or the other. For example, if a wife has been cheated on by her husband, she may have trust issues with men and not feel comfortable opening up to a male mediator. For the same reasons that a person prefers a female or male doctor, many people feel more comfortable opening up to one gender over the other.

 All this being said, you and your spouse (through attorneys, if you have them) must jointly agree upon a mediator. You will likely benefit from trusting your attorney in his/her mediator selection as he/she has likely done hundreds of mediations. Your attorney knows you best and will do all that he/she can to get a mediator that has the best chance of fully settling the case at mediation.

Preparing for Your First Mediation Session – Six Sample Tips

Wednesday, January 15th, 2014

The court or your attorney has advised you that your case has been scheduled for mediation. Now what? Hopefully you have also been given some information regarding mediation generally and what to expect during your first mediation session. Even armed with this information, you still may be wondering: What should I do now? How can I prepare? What will happen?

Below we have laid out six simple tips for preparing for your first mediation session. If you are already represented by counsel, it is very likely that your attorney will work with you to prepare the necessary documents for mediation. If you are currently unrepresented though, you may find these tips especially helpful.

1. Come with relevant and organized financial documents. In Georgia, it is a requirement that both parties in domestic relations matters such as divorce, child custody or child support matters complete a Domestic Relations Financial Affidavit (DFRA), outlining all income and expenses, and submit it to the court as well as the opposing party. Not only should you ensure you bring a completed DRFA to mediation, but you should also bring any relevant financial documents to substantiate your DRFA as well. Such documents include: bank account, mutual fund, brokerage account, and retirement fund records; real estate documents, vehicle payment and registration information, marital business records, and stock information. Additionally, you should have the most recent balances of all bank accounts and retirement funds as well as the current balance and monthly payments on your mortgage and home equity loans, all credit cards and other loans, such as student loans or loans against retirement funds and car loans.
2. Try to maintain control of your emotions. Mediation is, above all, a negotiation process. Heated emotions are very common during mediations concerning divorce or other family law related issues. Although common, and understandable, failure to keep a reign on your emotions will not allow you to have the clear head you need during the negations and may actually become a hinderance in the process.
3. Be prepared to negotiate. Resist the urge to argue. With the above point in mind, come to mediation in the mindset to listen to the other parties point of view and respond with your own in an effort to reach a conclusion. Mediation is a forward looking process aimed at resolving the issues between the parties. The past is the past. It cannot be changed. Thus, using mediation to simply argue about or rehash the history would serve to be terribly unproductive. So the first question to ask yourself is: What do I want? Once you determine your ultimate goal, work together with your attorney and the mediator to try to accomplish what you are looking for.

4. Ensure you and your attorney have the same goal in mind. It is important to know what your rights are, and to get legal advice from your attorney if you are represented. But, if you feel that your attorney is steering you towards litigation or down a part that is more adversarial than what you are looking for, it is perfectly acceptable to seek alternative counsel. Before you take any major steps in your matter, ensure that you and your attorney are working together towards a common goal.
5. Come with a planned budget. Before you will be able to request a specific amount of support such as alimony, it is important to know exactly how much you actually need. This principal applies in the opposite situation as well. Negations will go much easier if both parties are aware of what they need and/or what they are able to pay. In order to accomplish this, constructing a realistic budget will be necessary. Base your budget on concrete expenses, and bring it to mediation with you. Your DRFA may service to be particularly useful in constructing such a budget, as it already requires each party to record monthly income and expenses.
6. Be aware of your rights and possible obligations. Finally, prior to your first mediation session, educate yourself as much as possible. Gather information. Read more articles and books. Request an additional meeting with you attorney if necessary. Above all, ensure that you are fully aware of all of the possibilities and options available to you, as well as the obligation that you may be required to fulfill upon the conclusion of your case.